Criminal Law - Procedure - Information, indictment or presentment - Joinder - By statute - Same facts or series of offences of same or similar character - Sexual offences against a young person - Joinder of count of possession of child exploitation material - Whether offences of same or similar character.

R v Carr [2003] TASSC 123; R v May [2007] QCA 333, applied.

Criminal Law - Evidence - Propensity, tendency and coincidence - Admissibility and relevancy - Tendency under uniform evidence law - Other cases - Sexual offences against a young person - Admissibility of evidence of possession of child pornography - Whether evidence of significant probative value - Whether evidence should be excluded.

R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75; CGL v DPP [2010] VSCA 26; (2010) 24 VR 486, applied.

Criminal Law - Evidence - Propensity, tendency and coincidence - Admissibility and relevancy - Tendency and coincidence evidence under uniform evidence law - For particular purpose - Rebuttal of possible defence - Particular cases - Sexual offences against young person - Out of court statements by accused of abhorrence of sexual intercourse with young persons - Evidence of possession of child pornography admissible for purposes of context and credibility.

Criminal Law - Evidence - Relevance - Particular cases - Sexual offences - Statutory prohibition except with leave on evidence of the sexual experience of the complainant - Leave not to be granted unless Court satisfied the evidence has direct and substantial relevance to a fact or matter in issue - Meaning of "direct and substantial relevance."

Evidence Act 2001, s194M(2).

Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd [2002] SASC 374; VOT v Western Australia [2008] WASCA 102; (2008) 184 A Crim R 284, applied.

Criminal Law - Evidence - Relevance - Particular cases - Sexual offences against young person - Belief of accused as to age of complainant relevant to all counts - Offences committed in the course of complainant's work as a prostitute - Relevance of evidence of other clients of complainant as to observations and belief about age.

Simmons (1931) 23 Cr App R 25; USA v Yazzie 976 F 2d (9th Cir 1992), considered.

Judgment Number: [2011] TASSC 36

STATE OF TASMANIA v TERENCE LEWIS MARTIN (NO 2)

1 These are determinations under s361A of the Criminal Code. Mr Martin has pleaded not guilty to four counts on an indictment dated 20 January 2011 each alleging a different crime of a sexual nature. The complainant in the first three is a girl who was 12 years old at the relevant time. For want of a better description I will, on occasions, call her AB. The four counts, and brief particulars of each, are as follows.

•

Indecent assault contrary to s127 of the Criminal Code in that on or about 13 September 2009 the accused indecently assaulted AB a person under the age of 17 years, by licking her vagina.

•

Sexual intercourse with a young person under the age of 17 years contrary to s124 of the Criminal Code in that on or about 13 September 2009 the accused had unlawful sexual intercourse with AB, a person under the age of 17 years.

•

Production of child exploitation material contrary to s130A of the Criminal Code in that on or about 13 September 2009 the accused unlawfully produced child exploitation material by taking photographs of AB, a 12 year old, whilst she participated in oral sexual intercourse with him, "and/or posed nakedly in a sexual seductive manner", which he knew or ought to have known was child exploitation material.

•

Possession of child exploitation material contrary to s130C of the Criminal Code in that on or about 13 September 2009 and 27 October 2009, the accused had possession of child exploitation material, including photographs, photographic images and video files which he knew or ought to have known was child exploitation material.

2 As can be seen, the first three counts involve the same complainant, whose date of birth, it is agreed, is 21 October 1996. Each of the counts has the common date of 13 September 2009, the day on which relevant events are said to have occurred. The significance of 27 October 2009 in the fourth count, is that it is the day on which police found a considerable quantity of sexually related and pornographic material at the accused's home. This material covered a wide range of subject matter. In addition to spreadsheets cataloguing several years of the accused's sexual activities with adult females, there were about 16,500 images of an adult sexual nature, many depicting sexual activities between adult males and females. Of more immediate relevance were 1,308 still images of young girls, some very obviously so, but all very broadly around pubescent age. Some of these images depicted sexual activity with young boys, and with adult males. A small number of "posing" type images had been arranged into a slide-show format. There were also 185 images of young boys engaged in sexual activities with each other.

3 The evidence at trial will establish that AB, although only 12 years old, was prostituted by her mother and a male person, GD. It will be alleged that the accused engaged the services of AB as a prostitute, after seeing her advertised in a newspaper. The name adopted for AB was "Angela". The advertisement proclaimed that Angela was 18 years old. The particular issue at trial is likely to be the accused's state of mind in relation to the first three counts. The accused asserts a belief that AB was at least of or above the age of 17 years. As to the first count, the Crown will need to prove beyond reasonable doubt that the accused was not labouring under an honest and reasonable, but mistaken, belief as to the age of the girl; that is, that the belief either did not exist or was not honest and reasonable: Attorney-General's Reference No 1 of 1989 [1990] TASSC 13; [1990] Tas R 46.

4 As to the second count, under s124(2) of the Code it is a defence available to the accused, if he can establish on the balance of probabilities that he believed on reasonable grounds the girl was of or above the age of 17 years. As to the third count, the Crown needs to establish beyond reasonable doubt that he knew or ought to have known that the photographs he took were child exploitation material within the meaning of s1A of the Code. That definition requires a description or depiction in the material, of a person who is or appears to be under the age of 18 years.

5 The accused was originally charged on complaint only with what is now count 2 on the indictment. He was committed for trial in this Court on that complaint. On 5 November 2010, he applied for a preliminary proceedings order before Crawford CJ. That application was directed to the taking of evidence from 13 men, each of whom had contact with the girl in her role as a prostitute. On 11 November 2010 Crawford CJ refused the application and published reasons for so doing: [2010] TASSC 51.

6 His Honour explained the nature of the evidence and the basis of the application as follows:

"5 The prosecution provided him with copies of statutory declarations made by 13 witnesses. All men, they stated that they engaged the services of the complainant, almost all of them in September 2009. In their declarations they indicated their belief that she was not under 17 years of age, most of them saying that they believed her to be 18 or older. Some gave more reasons than others for their belief.

6 The accused has applied for a preliminary proceedings order that will permit him to examine each of those witnesses in preliminary proceedings to gain a better understanding of their reasons for thinking that the complainant was 17 or older. His counsel submitted that at the trial the evidence of those witnesses will be admissible because it is relevant to the question whether he had reasonable grounds for believing she was 17 or older. His argument was that if many others believed she was of age, it is more probable than not he had reasonable grounds for his belief."

7 At [14] his Honour said that he was not persuaded that it was necessary in the interests of justice to make a preliminary proceedings order. Some of his reasons for doing so were as follows:

"1 The question of the admissibility of the evidence is better left to a judge to determine when the full extent of the evidence of the witnesses is known.

2 It will be convenient for the evidence of the witnesses to be given for the first time in this Court on the voir dire and for the admissibility of the evidence to be determined immediately after.

5 The judge who presides over the voir dire need not limit the evidence to what is necessary for the purpose of determining its admissibility. Because a preliminary proceedings order will not have been made, the hearing should have the twofold purpose of what is known as a Basha inquiry and an inquiry into the admissibility of the evidence.

8 Part of the proceedings before me relates to the voir dire and the Basha inquiry to which Crawford CJ referred. I heard evidence from 11 men, the number having been reduced from 13, apparently by agreement between the parties. The proceedings before me were also enlarged to include an application to sever count 4 from the indictment, and a determination of the admissibility of tendency evidence as specified in a notice given by the Crown dated 3 February 2011.

9 The Crown will be calling the complainant to give evidence in the trial. I am told that she recalls going to the accused's house and him taking photographs of her, but that she cannot recall any sexual activity. The Crown will seek to rely on admissions made by the accused in a police interview and, of course as to count 4, the pornographic material itself. The police interview was conducted on 30 October 2009. In that interview, the accused said that:

•

he had seen the complainant on two occasions, having responded to an advertisement in the "Adult Services" section in The Mercury newspaper "...that simply said, Angela, 18 yo, with a mobile phone number";

•

he rang, spoke to the female "Angela", and made an appointment, after which he went at the appointed time to a unit in Glenorchy;

•

he was let in by a female not being Angela, and then met Angela who matched the description given over the phone of being 18;

•

after frank comments by the girl about the use of condoms (which the accused described) and having become "a bit nervous" as a result, he performed oral sex on her;

•

after Angela told him that he seemed really nice, he asked her whether she did "out calls" which she said she did "sometimes if I know the person";

•

he thought she was 18 years old;

•

he rang on 13 September and made an appointment for two hours, the girl arriving at the appointed time;

•

he performed oral sex on her again, after which she performed oral sex on him;

•

he then picked up his camera and took photos of the girl performing oral sex on him and took further photographs in the bedroom, after which they spent some time in a spa bath;

•

the girl told him a number of things about herself and her family which led him to believe she was the primary carer and that she could not get a normal job because she had to look after her family and prostitution was easy money.

10 Of particular relevance to an issue in these determinations are two responses of the accused in the interview. He appears to have been told at some stage before the interview commenced, or at least at the very commencement of the interview, that the girl was 12 years old. The following questions and answers appear in the record of interview:

Q Eighteen, yep, and that's based on, you saw that in the newspaper, eighteen initially?

A After you left the other night I couldn't sleep, I've got to tell you...

A (Inaudible) If I've slept with a twelve year old it's the most disgusting thing I can think of

A And um, I mean, the bottom line is she advertised that she was eighteen.

A And she, she told me in the Flat, that she was eighteen

A Her um I mean, I, her face looks like eighteen, I mean, if you tell me she was seventeen I'd believe that, but that doesn't look like a twelve year old."

11 The accused went on to detail a number of matters which were relevant to his stated belief in the girl's age. He was shown the photographs of he and the girl, which he admitted taking, one of which depicts his penis in the girl's mouth. He said that it was normal for him to take photographs of women that he had sex with. He talked about the extent of his sexual activity and explained that the medication he had been taking to treat Parkinson's disease had been shown to cause hyper-sexuality. He realised that this had had happened to him. Much later he was asked if there was anything further that he would like to say about the matter. The following is recorded:

"A Um, just that um, I know this looks really bad with the photos of young kids, but honestly, I've never ever ...

Q Hmm

A Had sex with a, knowingly had sex with someone under eighteen, and um, I just find it abhorrent

Q Hmm

A And it, it just sickens me. Er, have you got proof she's, you've got proof obviously."

12 The tendency notice under s97(1)(a) of the Evidence Act 2001 ("the Act") states that the accused photographed the complainant whilst having sexual intercourse with her "and on a number of occasions whilst she posed in a sexually explicit manner". These photographs were put onto his computer, printed out and then arranged in a photo album. (There are 128 of these photographs in the album which is in evidence.) The notice also states that prior to 10 September 2009 and 27 October 2009 [sic] the accused possessed child exploitation material including many images of young females under the age of 17 years, including the complainant. In the notice, the detail of these images is given by reference to various item numbers contained in seven pages of the Crown papers. These pages set out details of the images located on the accused's laptop computer and an external hard drive located at his house.

13 The items specified in the tendency notice are those files which contain images of girls and young females which vary from fairly benign posing whilst clothed to most abhorrent ones of sexual penetration by older men involving obvious force and a high degree of distress on the girl's part. (As previously noted, other files contain images of pornographic material involving adults. There were images of naked females appearing to be over the age of 17 which were taken by the accused; some depicting sexual activity between the accused and the female.) Other files contain images of young boys involved in various sexual activities. There are a number of multimedia files, one of which consists of five "completed slide shows". As to this, the suggestion is that the accused has made a slide show compilation from some of the other images, and put it to the music of "Forever Young". It is alleged that in total there are 133 images of the complainant. (These slide shows formed part of a larger collection of about 3,000 video files, about half of which were of a sexual nature, predominantly adult.)

14 In strict terms, the material identified as the tendency evidence includes images of the complainant which are alleged to have been the product of the conduct the subject of count 3. It must be the case however, that this material cannot be relevant in proving facts in issue which relate to the alleged crimes. It can only be material in the accused's possession prior to and at the time of the events which can possibly have any relevance. Otherwise, the exercise becomes a retrospective, if not a completely circular one. Of course, there is nothing to prevent the Crown including for consideration under count 4, the images of the complainant said to be the material produced as alleged in count 3. I am also told that evidence of the photographs of young boys will not be tendered in relation to count 4. Rather curiously however, I was told that the scope of the evidence tendered on this count may well expand if it is severed from the present indictment.

15 At this point, I should note that senior counsel for the Crown, Mr Coates SC, accepted that for the operation of all aspects of the tendency notice (but not of course as to count 4), it would be sufficient for the jury to have descriptions of the extent and detail of the relevant images. The actual content of that evidence could be agreed between the parties or determined by the trial judge. This is relevant to the question of prejudice. I also note the desirability, at least, of the Crown leading evidence of the nature and extent of all of the pornographic and associated material found in the possession of the accused. I would not see it as necessary to have the actual images of adult pornography tendered, but I think the jury should have some appreciation of the nature and extent of that material in order to put the possession of the directly relevant material into context. It is the totality which provides the greater understanding of the accused's sexual interests. To admit in evidence a selective number of images with young girls as their focus, gives rise to considerations of unfairness. Under s135, evidence may be excluded on the basis that it presents only part of the relevant picture, thereby distorting the true situation: Hughes Aircraft Systems International v Airservices Australia (No 3) [1997] FCA 558; (1997) 76 FCR 151. See also Calderwood v R [2007] NSWCCA 180; (2007) 172 A Crim R 208 at [40] - [41].

16 The relevant parts of the tendency notice under s97(1)(a) of the Act are as follows:

"2 The Crown hereby gives notice that it asserts the evidence in respect to count 4 is admissible in respect to counts 1 to 3 as tendency evidence. The evidence in respect to count 4 shows the accused has an indecent passion towards female children, including the complainant, with a tendency to store photographic images of men participating in sexual activity, either on his computer hard drive or in photographic albums in his residence.

3 It is the Crown case that the accused had an indecent passion towards the complainant, that he photographed her participating in sexual activity and sexual poses and that he stored such images on his photo album and computer.

4 Although not strictly tendency evidence, the evidence in count 4 is admissible in counts 1 to 3 of the indictment to rebut the suggestion by the accused in his video interview that he would find having sex with a 12 year old disgusting.

5 The evidence also goes strictly to his defence of whether he reasonably believed the complainant was 18 years of age as it:

(a) shows that he has a motive to have sexual relations with a person under the age of 17 years; and

(b) demonstrates that he had knowledge of the undressed appearance of females under the age of 17 years."

(a) whether count 4 should be severed from the indictment, or any other severance order made which may be appropriate;

(b) the admissibility on counts 1, 2 and 3 of the tendency evidence by virtue of s97 of the Act, and if admissible, whether it should be excluded under s101(2) or s137; and

(c) whether the evidence of the 11 men is admissible as relevant under s55 of the Act, as a matter of general principle;

(d) if it is so relevant, whether it cannot be adduced or elicited because of the provisions of s194M of the Act which relate to evidence of sexual experience of complainants.

18 The Code, s311(2), enables the joinder of more than one crime in the same indictment "if those charges arise substantially out of the same facts or closely related facts, or are, or form part of, a series of crimes of the same or a similar character". Section 326(3) of the Code enables a judge, if it appears that an accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one crime in the same indictment, or that for any other reason it is desirable to direct a separate trial for any one or more of the crimes, to order a separate trial on any count or counts.

19 Counsel for the accused, Mr Barker, submitted that the joinder of count 4 was an improper exercise under s311(2), on the basis that the accused's possession of a range of child exploitation material did not arise substantially out of the same facts or closely related facts as those on the first three counts, nor did it form part of a series of crimes of the same or a similar character. Mr Barker submitted that in any event, there should be an order for a separate trial on count 4 under s311(6), because of the prejudice arising from the nature of the material said to have been possessed by the accused.

20 In R v Carr [2003] TASSC 123, Crawford J (as he then was) was required to consider the joinder of a count of stealing in the form of shoplifting, with seven counts of burglary and stealing involving domestic premises, mostly in urban areas but with one incident occurring in the country. At par[6] his Honour set out the applicable law as follows:

"In Packett v R [1937] HCA 53; (1937) 58 CLR 190 at 207, Dixon J said that the concept of crimes constituting a series 'connotes some connection between the crimes'. For crimes to be of a similar character and for them to constitute a series for this purpose, there must be a sufficient nexus between the charges. Ludlow v Metropolitan Police Commissioner [1971] AC 29 at 39; De Jesus v R [1986] HCA 65; (1986) 68 ALR 1 at 15; R v McDonald (1979) 21 SASR 198 at 200; R v Killick (1980) 24 SASR 137 at 141; R v Burrows [2001] TASSC 90 at par10. 'Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.' Ludlow v Metropolitan Police Commissioner at 39. 'Even in that statement there is an element of circumlocution, but it is clear enough that, by requiring a series of offences, the section does not countenance the joinder of counts charging offences which are legally the same or similar in character but which in their factual setting are disparate. What is required is a sufficient correlation to enable the offences to be described as a "series" without straining the word beyond the meaning which it is reasonably capable of bearing.' De Jesus v R at 15."

"I am unpersuaded that the sixth count charging shoplifting may correctly be regarded with counts 1 to 5 and/or counts 7 and 8, as forming a series of crimes of the same or a similar character. Shoplifting bears little similarity to burglary, and stealing committed in the course of burglary, other than that it involves stealing and therefore dishonesty. Further, I understand that the shoplifting was committed during the day. The other crimes are alleged to have been committed at night. I hold that the sixth count should not have been included in the same indictment as the other counts."

"I am unpersuaded that counts 7 and 8 on the one hand and counts 1 to 5 on the other hand are, or form part of, a series of crimes of the same or a similar character. Counts 1 to 5 allege burglaries and thefts in a residential area of a suburb of Launceston. A relatively small amount of property was allegedly stolen from the domestic shed or garage. On the other hand, counts 7 and 8 were allegedly committed in the country some distance from Launceston, the amount and value of property stolen was considerable, and the burgled premises were used for a business rather than for domestic purposes. I am unable to identify a sufficient nexus between the two groups of crimes to bring them within the provisions of s311(2)."

23 Of particular relevance to this case is R v May [2007] QCA 333 in which the Court of Appeal considered the joinder of a number of counts relating to the possession of child pornography (counts 16 - 22) in the indictment, with a number of counts of sexual offences in respect of which the complainant was the accused's daughter (counts 1 - 15). The statutory provisions under consideration were similar to those in the Code. Holmes JA, with whom Wilson and Philippides JJ agreed, said:

"[34] Notwithstanding the liberal approach to be taken to joinder under s 567(2), [R v Collins [1996] 1 Qd R 631] I do not consider that these offences were properly joined. In the first instance, I do not think that counts 1-15 involved offences of the same or similar character as those entailed in counts 16-22. Consideration of whether charges entail a 'series of offences of the same or similar character':

'call[s] for the administration of a test in which time, place and the other circumstances of the offences as well as their legal character or category are all factors which are considered for the purpose of seeing whether the necessary features of similarity and connection are present': R v Cranston [1988] 1 Qd R 159 at 164.

[35] These were not offences of the same legal character; nor could they be said to be of similar legal character, in the way that indecent assault and rape might be. But even if one were to interpret the term so broadly as to say that because they were all offences involving sexual abuse of children, they were of similar legal character, it was still necessary that there be some nexus or connection between them in order to establish a series_: De Jesus v The Queen_ [1986] HCA 65; (1986) 61 ALJR 1 at 9 per Dawson J. That nexus may be constituted by factual similarity or may be demonstrated by the admissibility of the same evidence in respect of the different offences.

[36] As to the first, there was no factual or temporal nexus between these offences, nor was there any practical aspect of their commission which connected them. They did not involve common participants or a common victim or a similar methodology. ...".

24 I would take the same view of this case. Focusing on count 4, I do not think that it can properly be said that the crime of possession of child exploitation material is of the same or similar legal character as the first two counts on the indictment. Nor can it sensibly be said that count 4 forms part of a series of crimes of which counts 1 and 2 make up the other components. Senior counsel for the Crown has said that the material relied on for count 4 includes the photographs which the accused is said to have taken; that activity being the subject of count 3. However, the material relevant to count 4 goes far beyond those photographs. The evidence shows that the material in the accused's possession seems to have been accumulated from a point about in the middle of 2009, some of it possibly earlier. The accused seems to have come into possession of the bulk of this material, if not all of it, before September 2010.

25 It is only in very small part that counts 3 and 4 might be said to arise out of the same or closely related facts. That is due only to the possession by the accused of the photographs which are the subject of count 3. Count 4 is based on the possession of a far greater volume of material which has no connection with count 3. I think that realistically, any factual connection is too tenuous to satisfy the requirements of s311(2). Next, accepting for the moment that the crimes alleged in counts 3 and 4 are of a similar character, there must still be some connection in order to give rise to a "series". In my view that does not exist in this case.

26 On that basis the joinder of count 4 would be improper, subject to a nexus being established by virtue of cross-admissibility and in particular, the admissibility of the evidence as to count 4 as tendency evidence or otherwise as to the other three counts. As noted by Holmes JA in May (above) at [35], the nexus between counts may be provided by cross-admissibility of evidence. I will have to return to this question of severance, after resolving those questions of admissibility.

Cross-admissibility of evidence and the tendency evidence

27 Before dealing with the matters set out in the tendency notice, I will deal with the Crown's submissions as to cross-admissibility other than as are specified in that notice. It seems to me that the starting point of the Crown's submissions is that there is cross-admissibility in respect of counts 3 and 4. Mr Coates SC submits that the evidence as to the production of child exploitation material as alleged in count 3, goes to the possession under count 4 because implicit in the production by the accused in the alleged circumstances, is the fact of possession at that time. That is sufficient to make out the crime, provided the jury was satisfied beyond reasonable doubt that the photographs amounted to child exploitation material, and that the accused knew or ought to have known that to be the case. So much must be true, but at least of itself, this factor hardly comprises a palpable link of any great substance in the context of s311(2).

28 Next, it is submitted that the evidence on count 3 is admissible in respect of count 4, in that the taking of the images is relevant because it describes the circumstances of the accused coming into possession of the images; and is therefore relevant to the question of knowledge contained within the concept of possession. Further, it is argued that the possession of the child exploitation material produced on 13 September 2009 (the photographs of the complainant) is relevant to count 3 because the possession of it and the facts relating to the possession, may tend to prove production. Just how that would occur was not made clear, but I assume that the mode of proof relates to the camera used.

29 As to that aspect, Senior Constable Gibbons gave evidence of taking possession of a number of items from the accused's home on 16 October 2009. These items included a laptop computer and a portable hard drive. Constable Whittle of the Computer Forensic Unit said that S/C Gibbons gave him a Toshiba laptop, a Maxtor external hard drive, and a Panasonic Lumix digital camera, together with a number of SD cards. No model identification was given for the camera. Nothing was found on the camera or cards. However, on his forensic examination, a number of "link files" were found on the laptop. Those link files pointed to the external hard drive. Some images associated with the link files had embedded in them, metadata associated with the device which took the image. Constable Whittle's evidence was that three images of the complainant were taken with a Panasonic camera, the metadata showing that it was a DMC-TZ15 model. The evidence does not specifically link the two cameras, although I am prepared to assume that this situation may very well change at trial.

30 Additionally, and more generally, Mr Coates says that the proof of the possession of the photographs of the complainant (which of course form part of the material relied on under count 4) is admissible in respect of count 3 because the evidence of having them in his possession, would support the allegation that he took them. The reasoning process involved in this was not identified.

31 Mr Coates also made submissions as to the cross-admissibility involving counts 1 and 2. He submits that some of the photographs of the complainant, the subject of count 3, are admissible in respect of count 2, for no other reason than that they show the act of intercourse alleged; that of oral penetration by the accused of the complainant. Lastly there is a suggestion that the facts of counts 1 and 2 are relevant to the proof of counts 3 and 4. This is said to arise from the fact that the circumstances of the commission of the first two crimes were relevant to what the accused knew or ought to have known of the age of the complainant. There is the period in which the complainant was in the accused's company and the high degree of visibility in his home. The point made is that by the time the production and subsequent possession of the photographs occurred, the accused knew or ought to have known that the material would be child exploitation material as involving a person (the complainant) under the age of 18 years.

32 It is of course not permissible to adduce evidence to prove the guilt of an accused by showing the person merely to have a tendency or disposition to commit crime, or to commit crimes of a particular kind, or to be the type of person likely to have committed the crime charged. Under s97 of the Act, tendency evidence, even if relevant, is inadmissible if the court thinks the evidence, either by itself, or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, would not have significant probative value. If satisfied of significant probative value, s101(2) requires, in a criminal case, the evidence to be excluded unless the court is satisfied that the probative value of the evidence substantially outweighs the prejudicial effect.

33 Obviously, the first question is one of relevance. Under s55 of the Act the evidence needs to be such that if accepted, it could rationally affect the assessment of the probability of a fact in issue. If so, the next question is whether the evidence has a significant probative value within the meaning of s97(1)(b). Subsumed within that question are issues of the cogency of the evidence relating to the conduct of the accused, the strength of the inference which can be drawn from the evidence as to the tendency of the accused to act in a particular way, and the extent to which that tendency affects the assessment of the probabilities relating to facts in issue.

34 "Probative value" of evidence is defined in the Act as meaning the extent to which the evidence could rationally affect the assessment of the probability of the existence of the fact in issue. Significant probative value means something more than mere relevance, but something less than a substantial degree of relevance. For tendency evidence to have significant probative value it requires "that its degree of relevance to the events giving rise to the offence ... is important or of consequence": R v Lockyer (1996) 89 A Crim R 457 at 459; L v Tasmania [2006] TASSC 59; (2006) 15 Tas R 381 at 392 - 393 [31] - [32]. Accordingly, evidence has significant probative value if it could rationally affect the assessment of the probabilities as to facts in issue, to a significant extent.

35 There is no inflexible standard of significant probative value. A court needs to look at the nature of the fact or facts in issue to which the evidence is said to be relevant and the importance it has in establishing that fact or facts; regard must be had to the other evidence to be adduced: Lockyer (above) at 459. There is a need to ascertain and assess the logical nexus between the evidence in question and the facts in issue. In short, "all that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence": R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286 at 316 [125].

36 The Crown relies on the possession of images of young girls - predominantly the pornographic images - as having relevance and significant probative value in proving the accused committed the crimes. In this case, that should be interpreted in the sense of establishing the elements of each crime with the focus on the mental element and, in the case of count 2, answering the anticipated defence about belief of age as to which the accused bears the onus.

37 The Crown's submissions were variously and interchangeably directed to the question of the significant probative value of the tendency evidence, and the notion of "motive" as referred to in par5 of the tendency notice, but in this context as I would understand them, I think the points as to tendency evidence can be summarised as follows:

•

the possession and manner of keeping the various images showed a sexual interest in "underage" females, including girls of about the same age as the complainant, which activity includes the collection and arrangement of images for observation;

•

that state of mind in the form of sexual interest meant that it was more probable that the accused was satisfying, or giving expression to, that interest in carrying out the acts alleged in counts 1, 2 and 3, and;

•

it is more probable that the carrying out of the physical acts about which, presently at least, there appears to be little dispute, was accompanied by the relevant state of mind, that being he knew that the complainant was under 17 or was uncaring as to whether that was the case or not.

38 The questions at this point are whether the evidence of the accused's possession of the material has relevance and if so, whether it has significant probative value in terms of the inferences which the Crown would have the jury draw.

39 As to the first question, I hold the evidence to be relevant. I think it can be accepted that in terms of a rational assessment of the probabilities, a person who is in possession of and looks at such material may be more likely to act on the demonstrated sexual interest than one who does not. In R v MM [2004] NSWCCA 364 at [61] James J (with whom McClellan AJA and Grove J agreed) said:

"61 I do not accept that the evidence, regarded as evidence of a tendency the respondent had, was irrelevant. Evidence that the respondent, as a person charged with offences of child sexual assault, had collected and viewed child pornography and had fantasised about sexual acts with children satisfies the criterion of relevance under s 55 of the Evidence Act, in that the evidence is capable of rendering more probable that the respondent acted in the ways in which he is alleged by the Crown to have acted. In my opinion, no expert evidence was required in order to make such evidence admissible. It is in accordance with common human experience that a person who has had thoughts, particularly persistent thoughts, about some type of act is, at least to some extent, more likely to perform an act of that type than a person who has never had such thoughts. It is not to the point that many persons who fantasise about some act never actually do it."

40 As to the question of significant probative value, counsel for the Crown relied on two English cases, the first being Thompson v R [1918] AC 221. It is convenient if I set out a passage from the judgment of Duggan J (Anderson and Kelly JJ agreeing) in R v S, PC [2008] SASC 285; (2008) 102 SASR 199, which explains the facts of Thompson's case, the decision and how it should be viewed. At 205 [22] - [24] Duggan J said:

"22 Another case sometimes cited as an authority for the use of evidence of general disposition is Thompson v The King. [1918] AC 221. The appellant was charged with acts of gross indecency with two boys. It was not disputed that someone had committed the offences, but the defence case was that the appellant was elsewhere at the time the incidents took place. Evidence was led that two powder puffs were found in his possession at the time he was arrested and that photographs of naked boys were found in his house. The photographs depicted the boys in indecent poses.

23 Lord Sumner referred to a concession that the finding of the powder puffs on the appellant's person was of more significance than the photographs. However, it was held that the offender had demonstrated by his conduct that he had a particular propensity and that this was relevant, when taken with other circumstantial evidence of his previous dealings with the boys, to establish his identity as the offender on the occasion in question.

24 There is some doubt as to whether Thompson's case would be decided the same way today. (See the comments of Lord Sumner in Director of Public Prosecutions (UK) v Boardman [1975] AC 421 at 458; McHugh J in Pfennig v The Queen [(1985) [1995] HCA 7; 182 CLR 461](at 526).) However, it is appropriate to point out that Thompson's case was not a case of mere propensity providing direct proof of the commission of an offence, but rather a case where the evidence was used as part of a circumstantial case to establish identity. Even then the circumstances might be regarded as exceptional. Ligertwood, Australian Evidence (4th ed, 2004) at [3.19]."

41 Mr Coates also referred to R v Sims [1946] 1 KB 531. That case concerned a question of severance. Several counts of sodomy and gross indecency alleged to have been committed with several different men were joined on the one indictment. The Court of Criminal Appeal said that sodomy was a crime in a special category, and that the evidence in respect of one complainant was admissible on the other counts. I do not think this case to be of any real assistance. Precisely what made the evidence admissible as similar fact evidence was not made clear, other than the broad statement concerning sodomy. For my part, I would put Sims in the same category as Thompson as how it should be currently viewed.

42 There is a further English case of Lewis (1982) 76 Cr App R 33 which should be mentioned. The accused was charged with offences of indecent assault and indecency with children, the victims being the twin daughters of a woman with whom the accused was living. Evidence was admitted that the accused had in his possession documents, magazines, letters and posters, which he had obtained from the "Paedophilic Society", and that in interviews with the police the accused referred to himself as a paedophile. The accused raised the defence of accident or innocent explanation as to all counts except one, as to which he denied the alleged conduct. On appeal, it was conceded that the evidence was admissible in order to rebut the defence of accident or innocent explanation, where that was the only defence in issue. That concession was accepted as inevitable, but it was held that the evidence was inadmissible in respect of the count as to which there was a denial of the conduct. The Court went on to hold that the evidence should not have been excluded despite its prejudicial effect, and that the proper use of the evidence had been adequately explained in the summing up[1].

43 Not surprisingly, there are a number of more recent Australian cases which deal with the issue of the admissibility of evidence of the possession of indecent material, as propensity or tendency evidence in cases of sexual offences. I have already mentioned three of them. Only a small number of the total address admissibility under the uniform evidence law, but the cases may be instructive as to the issue of significant probative value: R v AH (1997) 42 NSWLR 702; JLS v R (2010) 204 A Crim R 179 at 186 [20].

44 In May (above) evidence of the possession of child pornography to an extent beyond that encompassed by the possession charges had been tendered in the trial. Its relevance was said to be the corroboration of the evidence of an acquaintance of the accused, with whom he had exchanged pornographic images by email. When assessing the probative value of the possession evidence, the trial judge noted the corroboration point, and continued on to say that the jury might conclude that the accused had a sexual predilection towards young children, which may well assist "in an appropriate way in deciding the matter properly." The trial judge also described it as "background evidence" providing the context in which the various acts occurred, and said that the evidence on the possession charges was relevant to establish the identity of the accused as the person in email correspondence with the acquaintance.

45 At [37] Holmes JA said that it was relevant for the Crown to prove the appellant used particular email addresses and a certain log-in, in order to show that he was the person communicating using that name with the acquaintance. Her Honour continued:

"The abundance of other pornographic material found in various folders, hard copies and discs in the possession of the appellant, including that which was the subject of [the possession] counts 16-22 did not assist in establishing his use of those names. It was unrelated to proof of anything but the appellant's interest in child pornography; it had nothing to do with whether he indeed carried out the acts involving his daughter and Shaw. The notion that it was admissible as showing 'sexual predilection' is simply wrong."

46 R v MM (above), involved the uniform evidence law. The accused was charged with a number of counts of indecent assault and sexual intercourse involving the same complainant, alleged to have been between seven and ten years old at the times of the various crimes. The first three charges were heard on the same occasion, it being alleged that the accused showed the complainant images on the computer that included images of an adult and two female children who were naked and engaged in sexual acts. The final three charges also involved the one occasion during which it was alleged that the accused took a photograph of the complainant with her skirt pulled up. During the trial the Crown sought to lead evidence of the discovery on the accused's computer of pornographic images of young female children, one example being of a female child of about seven years of age. The trial judge refused to admit the evidence, on the basis that the collection and viewing of child pornography was different in nature from the criminal acts of which the respondent had been charged, and that evidence of sexual fantasies by the respondent could not establish a tendency to act in the ways in which the Crown alleged the respondent acted. As previously noted, on appeal, the court held that the evidence, regarded as evidence of a tendency which the respondent had, was relevant. The court was not required to consider whether the evidence had significant probative value.

47 In R v S, PC (above), the accused was charged with three counts of indecent assault and one count of gross indecency on a young male person. The evidence at trial included details of arrangements made by the appellant for nude photographs of the complainant to have been taken. The photographs themselves were not tendered in evidence. The photographs did not depict the complainant in what might be called pornographic poses. On appeal, at [26], the court noted that the evidence of the photographs was left to the jury as evidence of the general disposition to engage in sexual conduct with young boys. It was held that in the absence of a more specific purpose beyond a general disposition, there was a clear danger of prejudice and a real risk of a miscarriage of justice. It was said that the situation would have been different if the evidence had been led to establish a particular disposition as opposed to a general disposition.

48 Further, in Gawne (1982) 5 A Crim R 400, the accused was charged with 18 sexual offences of varying descriptions involving young males. Evidence was given at the trial of the accused's possession of a quantity of envelopes containing photographs, many of which were of nude males. Two books were found, the titles of which referred to boys, and apparently contained a number of photographs of naked boys. There were also some magazines showing photographs of naked females. The two books were tendered in evidence. The complainants gave evidence that they were shown some books by the accused but the description did not fit the books tendered in evidence. Young CJ (with whom Lush and O'Bryan JJ agreed) held that as the books which were in evidence were not those shown to the complainants, they were irrelevant to any issue raised. At 402 his Honour continued: "But they were worse than irrelevant because they may well have been taken by the jury to show some propensity in the applicant to homosexual tendencies, and it is, of course, clearly established that evidence of propensity on its own cannot be given at a trial."

49 R v Jolly [1998] 4 VR 495 concerned the trial of an accused charged with one count of committing an indecent act with a child under the age of 16, and one count of sexual penetration with a child aged between 10 and 16. The first count involved the taking of indecent photographs of the complainant. Admitted into evidence were 96 photographs taken by the accused on various occasions. These showed a boy and some girls of a similar age to the complainant and were similar in nature to the photographs the subject of the count. Many of the photographs focussed on the genitalia of the subjects. The court upheld the decision of the trial judge to admit the photographs, holding that the probative value lay in the improbability that the complainant would depose to photographs being taken of her of such a similar nature unless she had, in fact, been so photographed. Absent concoction the photographs provided corroboration of the complainant's evidence and tended to rebut any suggestion of innocent association.

50 In Gordon (1991) 57 A Crim R 413 a husband and wife accused were charged with a number of charges of sexual assault upon the female's 7 year old son. Each accused took photographs of some of the conduct of the other. The accused denied any impropriety and asserted that the boy had been induced and manipulated into making the allegations at the behest of a third party seeking his custody. In evidence, the boy said that he had been shown certain photographs depicting the two accused in sexual acts between themselves, and two plastic dildos. The photographs and objects said to have been shown to the boy were tendered in evidence. The court held that the evidence of the photographs was admissible to corroborate the witness's evidence, notwithstanding its suggestion of propensity. It had important probative value in light of the issue of credit raised.

51 R v Shaoyi Liu [2006] VSC 512 is a ruling at trial. It did not involve child sex offences, but the accused was charged with the rape and murder of an adult female. The mouth of the victim had been taped. The Crown sought to lead evidence of pornography found on the accused's computer. Nine items viewed by the accused on the night of the crimes were sought to be tendered. This constituted only part of the 31 clips accessed. It was suggested that the particular files showed a woman resembling the victim, and in eight of the 10 the women appeared to be gagged. The balance of the clips was described "as a representative sample of all types of pornographic heterosexual exploits". In ruling, Coldrey J said that given the quantity of the material collected, there could be little doubt that the accused had a very great interest in matters sexual, but went on to say that there was no clear and discernible link between that state of mind and the accused's actions giving rise to the charge of rape. His Honour observed that where the nexus goes beyond mere propensity, the result may be different, citing the cases of Gordon and Jolly (above) as examples.

52 Some pertinent observations were made by Barr J in PGM v R [2006] NSWCCA 310; (2006) 164 A Crim R 426 (McClellan CJ at CL, Buddin J agreeing.) At the accused's trial for a number of sexual offences against a young girl, evidence had been admitted of the description of one photograph which had been found in the accused's possession. This matched the description of a photograph which the complainant said the accused had shown to her. The trial judge refused to admit evidence of a large number of other pornographic images found on the accused's computer. Two of the issues on appeal related, first to the admission of the description, and secondly to the decision of the trial judge to allow cross-examination of the accused as to the other material after he had made certain statements which were said to put his good character in issue. At [32], Barr J said that the evidence of the description was highly probative and brought with it no great risk of unfair prejudice, "No doubt the image would have been accepted by the jury as obscene and abhorrent, even though it was not shown to them, though scarcely more so than the description of the primary acts [charged]."

53 At [41] his Honour went on to say that the trial judge was wrong in allowing the cross-examination, and continued:

"... There are two reasons for this. First, the evidence of a large number of images of adults having sexual relations with prepubescent girls was likely to overwhelm the jury and divert them from their task, notwithstanding strong directions about the way in which the evidence could be used. The evidence had the capacity to shock, even though it had no direct relevance to the matters in issue. As his Honour observed in rejecting the evidence when it was tendered as tendency evidence, its probative value was not significant and it brought with it a risk of high prejudice which exceeded that value."

54 Lastly[2], in AW v R [2009] NSWCCA 1, under s97, "tendency evidence" had been admitted at the appellant's trial on a number of sexual offences involving a young girl, to the effect that he had accessed child pornography on the internet. This evidence came from both the complainant and her mother. The evidence revealed an incident during which the appellant sat at a computer and invited the complainant and a friend to look at the screen. There was other evidence that the appellant had been looking at a screen on which the words "hardcore child pornography" appeared, along with images of "underdeveloped children". On appeal, it was held that it was open to the trial judge to find that the tendency evidence had significant probative value.

55 Latham J (with whom Bell JA and Fullerton J agreed) referred to the decision of MM (above) but noted that given it related only to the question of relevance, the decision was "of limited value" in the determination of the point of whether the requirements of ss97 and 101(2) were satisfied. Her Honour went on to note that the evidence foreshadowed by the tendency notice, fixed the particular incident referred to and the access to "hardcore child pornography" in a particular year which coincided with two counts on the indictment. It was said that it was significant that one count alleged a particular sexual act consistent with the type of activity which the complainant had said was depicted on the computer screen. Her Honour said:

"Contrary to the appellant's submissions, there was a degree of particularity and contemporaneity in the tendency evidence that allowed the trial judge to reach the conclusion that it was significantly probative."

Latham J further said at [49] that the evidence of the viewing of hardcore child pornography constituted "powerful tendency evidence", although precisely why this was so was not explained.

56 I have previously mentioned the need to examine the fact or facts in issue to which the evidence is said to be relevant. It may not be enough to assert that it makes it more probable that the accused committed the crime charged; in some cases, precise identification of the relevant facts might be critical to the process: R v Fletcher [2005] NSWCCA 338 per Simpson J at [34]. In that case, at [49], her Honour went on to say that any fact upon which the prosecution relies to establish the offence charged is a fact in issue, even where it is not disputed by the accused. However, some refinement may be necessary when assessing the significant probative value of tendency evidence. In Thompson's case (above) Lord Sumner said that the "mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose. The prosecution cannot credit the defence with fancy defences in order to rebut them at the outset with some damning piece of prejudice".

57 On the other hand, it may be difficult to assess the defence position when, as here, the question of admissibility is to be determined before the trial. As Gleeson CJ pointed out in HML v R [2008] HCA 16; (2008) 235 CLR 334 at [9]:

"There may be no relevant conduct of the defence case by reference to which a decision can be made. Furthermore, the conduct of the defence case may not be a fixed point of reference. It is important not to overlook the legitimate opportunism that may be involved in the conduct of a defence under an accusatorial system of trial."

58 I think that what is required is an assessment of what the issues are, or are likely to be, in real and practical terms. This accords with the approach to determining the relevance of evidence to a fact or facts in issue under s55: R v Sievers [2004] NSWCCA 463; (2004) 151 A Crim R 426. In his record of interview the accused admits the physical acts relevant to counts 1, 2 and 3. I am told that the accused's state of mind will be the issue at trial, and it is that which in practical terms is the real issue. It is of course possible that the admissions may be recanted, but in reality, the important issues in the proceedings are not whether any sexual activity occurred, nor the identity of the accused as the person involved. The important issues surround the accused's state of mind, as it falls to be differently considered in relation to each of the first three counts. Accordingly, the tendency evidence is not specifically directed to corroborating the complainant's allegations that the particular sexual incidents occurred, nor are they referable to the issue of identity. The use to which the evidence is put simply flows from what it may establish by way of tendency or disposition, and what may be inferred from that in relation to the accused's state of mind which accompanied his conduct.

59 The terms of the tendency notice show that by the evidence it is sought to establish a sexual interest in young females, with a tendency to store photographic images of them. That is said to make it more likely that he committed the crimes as charged. It might be said, adopting the reasoning process arising from "common human experience" as outlined by James J in R v MM (above), that the fact of the possession of images of young girls of the type possessed by the accused might make it more probable that he would engage in sexual activity with a girl whom he knew was under the age of 17, or did not care.

60 Even accepting that however, I take the view that the evidence of possession does not have probative value of sufficient significance in terms of the issues at trial. The evidence may be taken as establishing a general tendency, in the sense of a sexual interest in young females. But that interest is not an exclusive one, and beyond that there is nothing in particular having any probative value to establish that the accused would act on that sexual interest and commit the crimes as charged. There is no particular nexus between the level of sexual interest which may be established by the material, and the matters in issue. The need for a particular nexus and the form that may take, are shown (perhaps with the exception of AW v R) in the cases reviewed above. The generality of the tendency alleged militates against the evidence of such tendency having significant probative value: R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75 at 88 [67].

61 I think the situation in this case is akin to that considered by the Victorian Court of Appeal in CGL v DPP [2010] VSCA 26; (2010) 24 VR 486. Tendency evidence was admitted at a pre-trial determination in relation to 19 counts of sexual offending. There were four complainants. Six separate tendency notices under s97(1)(a) had been served. Some of those notices asserted a tendency on the part of the accused "to act upon his sexual attraction to young girls aged between eight and 13 years", and to have "a sexual attraction to young girls aged between eight and 13 years". At 496 [35] the court noted that tendency evidence of this kind can be highly potent in that proof "of a person's tendency to commit acts of a particular kind or to be sexually attracted to a person of a particular age or gender can have significant probative value in relation to allegations that the person committed an act of that kind, or sexually assaulted a person of that age and gender ... It can also be highly prejudicial".

62 For the appellant's trial, the prosecution was also to rely on coincidence evidence under s98, the details of which were the same as for the tendency evidence. The court held that the evidence was not admissible as coincidence evidence, and in relation to the tendency evidence said at 497:

"38 Just as the lack of relevant similarity rendered the coincidence evidence inadmissible, so too with the tendency evidence - and for the same reasons. Absent relevant similarities, the evidence would be - as senior counsel for the applicant put it - 'pure propensity evidence'.

39 Part of the difficulty lies, once again, with the degree of generality in the notices. When s 97(1) speaks of a tendency 'to act in a particular way', we hardly think that Parliament had in mind a tendency which would be expressed as generally as 'a tendency to act upon sexual attraction to young girls aged between eight and 13 years'." [My emphasis]

63 I do not think that the force in the logic that a person with a non-exclusive sexual interest in young girls, would commit sexual crimes against such girls is sufficiently compelling to give the evidence a probative value of significance. I rule the evidence to be inadmissible as tendency evidence. If I am wrong about that, I would take the view that the evidence should be excluded by virtue of s101(2) in that its probative value is substantially outweighed by its prejudicial effect. There is no doubt that the evidence of the more graphic child pornography in particular, would have a significantly prejudicial impact. There is no requirement, as in s137, for the prejudice to be "unfair". It is simply a question of whether the prejudice an accused will suffer by the admission of the evidence is substantially outweighed by the probative value (assuming, at this stage of the exercise, that such value is significant). The prejudice referred to in s101(2) does not, of course, mean the increased ability to prove the case on a rational basis. It includes an adverse effect on the perception of an accused by the jury, and on their reasoning processes, and encompasses the risk that the jury will decide the case on an improper or irrational basis; one other than a logical one connected with the issues.

64 No clear delineation as to category and purpose was made in the submissions, but I assume from the introductory words of pars4 and 5 of the tendency notice as set out above at [16], that the evidence is said to be admissible for non-tendency purposes as stated in those paragraphs. Mr Coates SC argued that evidence of the possession of the images of young girls, together with the arrangement of some of those images in multimedia files, gave the accused a motive to act as alleged in the first three counts on the indictment.

65 Nothing is achieved by calling the tendency evidence, evidence of motive, and asserting that it has a non-tendency use, thereby avoiding the application of ss97(1) and 101(2). I say this for the following reasons. In the first place, the evidence which is the subject of the debate, does not establish any sexual attraction for the complainant herself. Discussions in the authorities about a sexual interest giving rise to a motive, have been confined to cases of sexual interest in a particular complainant; not as here, sexual interest in a particular class of persons. Once the focus moves from the particular to the general, it is very difficult to see how the evidence can be used in any other way than evidence of tendency, thus attracting the operation of s97(1).

66 Secondly, there is a respectable view that evidence of motive is evidence of disposition to commit the particular crime. Motive is the suggested cause of the commission of the crime, "and can be viewed as propensity to commit the particular offence charged, in contradistinction to propensity to commit offences generally of the type charged": DPP v Kilbourne [1973] AC 729 per Lord Simon at 757. See also HML v R (above) per Gleeson CJ at [7], [26], and Kiefel J at [493]. Moreover, evidence of sexual interest in a complainant has been viewed as tendency evidence as such: R v AH (above) at 708 - 709; R v Greenham [1999] NSWCCA 8, per Hidden J at [23]. On the other hand, in Leonard v R [2006] NSWCCA 267; (2006) 164 A Crim R 374, Hodgson JA drew the distinction between motive and tendency. The accused was charged with committing particular sexual assaults against a complainant, and evidence was admitted at his trial that he had committed similar assaults on the complainant on other occasions. Hodgson JA said:

"49 ... It seems to me that, where a man is charged with particular sexual assaults against a complainant, evidence that he committed similar assaults against the complainant on other occasions could be relevant in at least three different ways, only one of which would be as tendency evidence:

(1) It may be relevant to the extent of removing implausibility that might otherwise be attributed to the complainant's account of the assaults charged if these assaults were thought to be isolated incidents, in particular implausibility associated with the way each party is said to have behaved on these particular occasions.

(2) It may be relevant in supporting an inference that the accused was sexually attracted to the complainant, so that he had a motive to act in a sexual manner towards the complainant.

(3) It may be relevant in supporting an inference that the accused not only had the motivation of sexual attraction, but also was a person who was prepared to act on that motivation to the extent of committing sexual assaults."

50 Categories (1) and (2) depend entirely on the other sexual assaults being committed against the same person. Category (3) does not depend entirely on that, although generally evidence used for this purpose can have strong probative value only if the other assaults are against the same person.

51 In my opinion, use of the evidence for the purpose (1) is plainly use as relationship evidence. Use of the evidence for purpose (3) is use as tendency evidence.

52 In my opinion use of the evidence for purpose (2) is not use as tendency evidence: it is rather evidence supporting an inference that the accused had motivation to act as charged. ..."

67 The law seems to be though, that where evidence is sought to be relied on as evidence of motive, it should be treated in the same way as tendency evidence in strict terms, and s97 applies. Hodgson JA revisited the issue in ES v R (No 1) [2010] NSWCCA 197. After setting out the same analysis of the ways in which the evidence could be used, as his Honour had done in Leonard, he continued:

"39 However, although there is in my opinion a theoretical distinction between categories (2) and (3) (see Leonard v R [2006] NSWCCA 267; (2006) 67 NSWLR 545 at [48]- [67], HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [155]- [158] per Hayne J, [273]-[279] per Heydon J), and although motive evidence as such is not subject to the requirements of s 97 of the Evidence Act, it is not practical to maintain that distinction in the case of the sexual interest of an adult in a child. This is (a) because the existence of that interest can be considered itself to manifest a tendency to have a particular state of mind, (b) because the uncharged acts will generally ipso facto have manifested a tendency to act on that interest, and (c) because the very powerful effect of tendency reasoning would be very likely to swamp any effect of motive reasoning: cf Leonard at [68], [101].

40 Consistently with this, it is now well established that if evidence of uncharged acts is to be used in such cases in any way other than as context evidence, then the requirements for tendency evidence need to be satisfied: Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463; DJV v R [2008] NSWCCA 272."

68 Accordingly, whilst there may be a theoretical difference between the evidence of motive to act as charged, and evidence of tendency making it more likely that the accused committed the crime charged, there is no practical difference in terms of its use in a trial of sexual offences against a child. It follows that my ruling as to the suggested use of the evidence as evidence of motive, is the same as that which I made in respect of the use of the evidence as tendency evidence as such.

Evidence of knowledge of the undressed appearance of females under the age of 17 years

69 This suggested use of the evidence is also one which does not involve tendency reasoning. The submission that the evidence is relevant to this point is based on a number of assumptions, and it is the nature and breadth of those assumptions which tell against the submission. Leaving aside for the moment the fact that the jury would have to be satisfied beyond reasonable doubt that a sufficient number of images showed females under the age of 17 years, the first assumption is that there is a distinctive or uniform appearance of "undressed females under the age of 17 years", and which distinguishes them from females over that age. Except as it relates to prepubescent girls, that clearly is not right. The complainant had obviously reached the age of puberty and was physically developed. The submission also assumes that the images reveal such a distinctive or uniform appearance. Moreover, for the evidence to have any relevance, there is an assumption that the complainant conformed with whatever is said to be the distinctive or uniform appearance.

70 For the reasons I have outlined, I have difficulty in seeing the relevance of the evidence on this basis. I have grave doubts that it could rationally affect the assessment of the probability of the existence of a fact in issue. I would rule accordingly. But even assuming that the evidence has relevance and some probative value, I would refuse to admit the evidence by the application of s137. I consider that whatever probative value the images have in the suggested respect, it is outweighed by the danger of unfair prejudice created by the invidious comparative processes through which the jury would have to go; in turn, or in any event, creating an unacceptable risk of an improper approach to the ultimate issues.

71 Although not specifically addressed in the Crown's submissions, the tendency notice claims that the tendency evidence has a non-tendency use of rebutting suggestions made by the accused in his police interview. The notice refers to a comment by the accused that he would find having sex with a 12 year old, disgusting. It will be recalled that the accused said to police that if he had slept with a 12 year old "it's the most disgusting thing I can think of". In addition, he said that he had never knowingly had sex with someone under 18 "and um, I just find it abhorrent ... And it, it just sickens me".

72 This submission as to admissibility assumes that it is open for the jury to find that by the statements, the accused was intending to assert that he found the notion of sex with underage females, in particular a 12-year old girl, disgusting and abhorrent; the inference being that it is not the sort of conduct in which he would engage, at least knowingly. In my view it is open to the jury to make that finding and to draw that inference. The relevance of the "tendency evidence" in this context is plain enough. It could rationally affect the assessment of the probabilities of the existence of facts in issue. Those facts in issue are the varying states of mind required to make out counts 1 and 3, and the defence under s124(2) of the Code.

73 The evidence of the accused's possession of graphic images of sexual activity between adult men and what are obviously young girls, relates to the truthfulness of the accused's statements to police. The possession and viewing of such images might suggest that the notion of sexual intercourse with a very young female is not as disgusting or abhorrent as the accused would make out. The subject statements are exculpatory but would no doubt have to be tendered as part of the interview as a whole: Cross on Evidence 8th Aust ed (2010) at [33455]. The evidence would go to the accused's credibility in a way that does not attract the prohibition contained in s102 of the Act. It might also be used to establish that the statements were false, and showing a consciousness of guilt. Generally, the evidence serves to put the statements in a proper context, and relates to facts in issue in that way.

74 I take the view that the evidence is admissible for that use, but that is subject to the exclusionary provisions of ss135 and 137. Realistically, one goes to s137 first. I must refuse to admit the evidence if its probative value is outweighed by the danger of unfair prejudice. I have already discussed the prejudicial effect which could arise as a result of the pornographic material being in evidence. Section 95 of the Act prevents the evidence, having been admitted on this non-tendency basis, from being used for tendency purposes. The jury would have to be given firm and clear instructions as to the use to which the evidence may be put, and against the use of tendency reasoning: BRS v R [1997] HCA 47; (1997) 191 CLR 275; Toalepai v R [2009] NSWCCA 270 at [48]; R v Giovannone [2002] NSWCCA 323 at [99].

75 As to the balancing exercise under s137, the probative value of the evidence, in its identified use, is high. It puts the accused's responses to police in their proper context and could have a weighty impact in the assessment of his credibility in relation to facts in issue. Whilst the evidence is undoubtedly prejudicial in the sense that it might give rise to irrational and emotional responses, and have a corresponding impact on the reasoning process, I take the view that the probative value of the evidence, limited in its use as it will be, is not outweighed by the danger of unfair prejudice. The danger of unfair prejudice is significantly lessened by the fact that the Crown's purpose can be achieved by evidence describing the material, rather than the tender of the images themselves. Even graphic descriptions will not carry the same capacity to invoke irrational and emotional responses as the images themselves. Further, any prejudice is likely to be properly ameliorated by the directions as to the limited use the jury may make of the evidence, which will no doubt be given: TKWJ v R [2002] HCA 46; (2002) 212 CLR 124 per McHugh J at [90].

76 I need to again mention s135 of the Act in this context. If this evidence is to be led for this limited purpose, it strikes me as unfair if it is only the evidence outlined in the tendency notice which is put before the jury. I discussed this point in par[15] above. To put the accused's answers completely in their proper context, evidence as to the full nature and extent of the accused's possession of pornographic and associated material should be before the jury. A jury might well conclude that the accused had a broad range of sexual interests, one not strictly confined to young girls. I would allow the tendency evidence to be used for the purpose presently under discussion, but only on the basis that the jury has an appreciation of the true situation. That will be a matter for the trial judge to regulate. And I should say, it may be a matter about which counsel for the accused at the trial makes a tactical decision for some reason, to proceed otherwise. In short, my ruling is that the evidence is admissible, but conditionally so, and there may be a consequential need for the trial judge to look again at this issue.

77 Lastly, I will deal with a submission made by Mr Barker, for the accused. Implicit in the submission was that s110(3) of the Act was the only basis on which the Crown could seek to tender the evidence, and that the precondition set by s110(2) had not been met. The relevant sections are as follows:

"110 Evidence about character of accused

(1) ...

(2) If evidence adduced to prove, directly or by implication, that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove, directly or by implication, that the defendant is not generally a person of good character.

(3) If evidence adduced to prove, directly or by implication, that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove, directly or by implication, that the defendant is not a person of good character in that respect."

78 The starting point of the argument is that by making the assertions about his attitude to sex with a 12 year old girl, the accused was not "putting his character in issue", but rather, was denying what was alleged albeit "in an emphatic way": Gabriel v R (1997) 76 FCR 279 per Gallop J at 281. I would add that there is an even more compelling reason for concluding that the playing of the video record of interview by the Crown would not satisfy the requirements of s110(2). It is clear that the raising of good character requires a conscious decision on the part of an accused; such evidence must be intentionally and deliberately adduced for the purposes of raising character: R v Bartle [2003] NSWCCA 329; PGM v R (above) at [35]; Gabriel v R (above).

79 Mr Barker further submitted that were the accused to elect to give evidence in the trial, and to say the same sort of things, he would not be "adducing" evidence of his good character in any event, because of s371(c) of the Code.[3]

80 I do not need to determine the last submission as to the Code, although I would be strongly inclined to the view that s371(c) would be confined in its operation to trial procedures as set out under the Code, and would have no impact on what is meant by "adducing" evidence under s110. In any event, I agree with the proposition that the assertions made would not amount to anything more than emphatic denials of the conduct. I take the view that the production by the Crown of the accused's answers in the trial would not amount to evidence intentionally adduced by the accused that he was generally of good character.

81 Further, if the interview is played in its entirety and the accused then gives any evidence directed to the meaning of his answers, it might be difficult "for the Crown to persuade the Court that the accused's answer to a later question involved the accused adducing good character if the preliminary context places the accused in a position where he or she is concerned to address the perceived hint of guilt by opportunity or tendency by making an emphatic denial of guilt in the particular." R v Bartle (above) at [136] - [original emphasis].

82 All of that does not mean that the evidence might not be admissible on another basis. As I have explained, I consider that it is admissible as evidence which bears on the truthfulness of the statements made in the interview, which of course have to be put in the context of all of the answers in that interview.

83 It follows from what I have written that the question of severance is to be resolved on the basis that, absent the admissibility of the "tendency evidence" to rebut suggestions in the police interview, there is no realistic connection between count 4 and the first three counts, and no compelling reasons to justify its joinder. I do not consider that the admissibility of the tendency evidence on the basis which I will permit, is sufficient to maintain the indictment in its present form.

84 The trial on count 4 will inevitably involve the tendering of the actual material relied on. The jury will have to examine it in order to see whether they are satisfied beyond reasonable doubt as to the elements of the offence. There is quite a volume of this material, and the nature of it is such that it will inevitably create the risk of prejudice in relation to the trial of the other three counts. The tendency evidence can be put in a different form; that is, by description. I take the view in the circumstances that it would be very difficult to sufficiently ameliorate the risk of prejudice by directions. Count 4 should be severed from the indictment. The application only related to this count, and I see no reason for severing the indictment in any other way.

The admissibility of the evidence of the other men

85 As noted at the commencement of these reasons, statutory declarations from these men were provided to the accused who then applied for a preliminary proceedings order in order to examine them in preliminary proceedings. I have been told that if I rule that the evidence of any one of the men is admissible, the Crown will call him as a material witness in the trial.

86 Considerations of s194M of the Act may arise in this part of the determinations. The relevant parts of the section are as follows:

"194M Evidence relating to sexual experience

(1) In any proceedings before a magistrate or court relating to a crime charged under Chapter XIV or Chapter XX of the Criminal Code or any offence under section 35(3) of the Police Offences Act 1935, including proceedings for the sentencing of the defendant, any evidence that discloses or implies -

(a) the sexual reputation of the person against whom the crime or offence is alleged to have been committed must not be adduced or elicited; and

(b) the sexual experience of that person, other than sexual experience which forms part of the events or circumstances out of which the charge arises, must not be adduced or elicited unless leave of the magistrate or judge is first obtained on application made in the absence of any jury.

(2) A magistrate or judge must not grant leave unless satisfied that -

(a) the evidence sought to be adduced or elicited has direct and substantial relevance to a fact or matter in issue; and

(b) the probative value of that evidence outweighs any distress, humiliation or embarrassment which the person against whom the crime or offence is alleged to have been committed might suffer as a result of the admission of that evidence.

(3) For the purpose of subsection (2)(a), evidence does not have direct and substantial relevance to a fact or matter in issue if it is relevant only to the credibility of the person against whom the crime or offence is alleged to have been committed.

(4) For the purpose of subsection (2)(b), the magistrate or judge must take into account the following matters in assessing the amount of the distress, humiliation or embarrassment which the person against whom the crime or offence is alleged to have been committed might suffer as a result of the admission of the evidence:

(b) the number and the nature of the questions likely to be put to that person.

87 The issues which need to be resolved are as follows:

•

whether the evidence of other people as to their observations of the complainant and their belief as to her age is relevant and admissible, as a matter of principle;

•

if so, whether leave to adduce the evidence is required by s194M(1) of the Act, this being dependent on whether the evidence of the other men of their encounters with the complainant amounts to "evidence that discloses or implies the sexual experience of [the complainant], other than sexual experience which forms part of the events or circumstances out of which the charge arises, ...";

•

if it is not, whether the evidence sought to be adduced has direct and substantial relevance to a fact or matter in issue, this question involving a more individualised examination of each man's evidence.

88 There is little point in setting out the detail of the evidence of each of the 11 men, to whom I will simply refer by the letter W, followed by the number of the order in which they gave evidence. With the exception of W11, with whom I will deal separately, much of the evidence is common to the remaining 10. They all responded to an advertisement in the local newspaper - The Mercury - promoting the "adult services" of the "18 year old Angela". They all went to a unit in Glenorchy in daylight hours and were met at the front door by a person who, it seems to be common ground, was the complainant. They each went through a living area into a bedroom which, although described in varying terms, seems to have been fairly dark. The degree of darkness varied from descriptions of not really being able to see anything at all, to "gloomy", with one witness saying he was able to see a hand basin in an adjoining bathroom.

89 All had sexual intercourse with the complainant except three who had a massage. Somewhat oddly, those three had, by the end of the session, developed a degree of uneasiness about the situation. One said it was because of the apparent age difference between him and the girl, even though he said she looked 19 to 20 years old; the others because of the presence of GD in the lounge room. Three of the men, W3, W5 and W8, returned for a second visit within a few days or so, with essentially the same thing happening. All of them say that "Angela" looked to be at least the age stated in the advertisement. Estimates ranged up to "22 - 24", with one, W9, saying that she looked a bit "world weary". He said that "the way she was... it was like she was a 40 year old woman".

90 W11 did not go to the unit in Glenorchy but went to a room in a city hotel at about midnight. He was met in the foyer by both GD and AB, went up in an elevator to a room and had sexual intercourse with the complainant. He said they talked for a while. He went back the next night simply to see her and removed himself from the hotel whilst the complainant was occupied with another client. He returned and had a shower with the complainant, after which he drove the complainant and GD to Glenorchy where he was dropped off. He then drove with the complainant to Cornelian Bay where they sat in the car and talked for a while. A few days later he went to the girl's home and met her mother. GD was also there.

91 It would seem from his evidence that he went to the complainant's home on several occasions, on one of which he and the complainant went to a shopping centre with the mother and sister. Ultimately, he said he "split with" the complainant before he found out her age. This was because he was unable to cope with the girl prostituting herself. He was asked how he came to find out how old she was. His evidence was as follows:

"Um, her mother came into my work at the time in the bottle shop and was basically crying, saying she'd lost the kids, I asked how and she said '[AB was 12] and that they were being prosecuted for her being a prostitute at that age.

Right. And was this the first you'd heard of the female being 12?

Yes.

And what was your reaction to that? ... I went out to the toilet and vomited violently."

92 As I have already noted, as to each of the first three counts there is a different issue concerning the accused's state of mind. It is convenient if I repeat them. As to the first count, the Crown needs to prove that the accused did not have an honest and reasonable, but mistaken belief that the complainant was at least 17 years old. The onus is on the accused in relation to the second count to prove that he believed on reasonable grounds that the complainant was of or above the age of 17 years. Effectively, in the circumstances of this case, the third count requires proof by the Crown that the accused knew or ought to have known that the complainant was under the age of 18 years.

93 The first issue is really one of relevance. Mr Coates SC submitted that evidence of the incorrect belief of one person about the girl's age is of no assistance in relation to the state of mind of the accused, and is irrelevant on that basis. It is said that questions of reasonable belief and what the accused ought to have known are to be resolved by looking only at the particular circumstances in which the accused found himself. There is an objective assessment of those circumstances, and the accused's state of mind is assessed accordingly. Mr Coates relied on Phillips v R (2006) 225 CLR 333, in which it was held that in a trial for multiple sexual offences, evidence that one complainant did not consent is not relevant to the question of whether or not a different complainant consented. That case however can be readily distinguished from this. In Phillips the state of mind of one complainant was suggested as being relevant to the state of mind of another. It was not a case involving facts and circumstances relevant to the state of mind of the accused.

94 For the reasons which follow, I reject the Crown's submission. The point is to be resolved by the application of first principles; in this case, s55 of the Act. If the evidence were accepted, and it could rationally affect, directly or indirectly, the probability of the existence of a fact in issue, it is relevant. The evidence in this case is not merely the formation and statement of a witness's belief, it includes that person's perceptions and observations upon which that belief was formed. If those facts and circumstances, together with the formation of the belief, satisfy the test under s55, the evidence is of course relevant. In general terms, the evidence has the capacity to be relevant, and I see nothing as a matter of principle which dictates otherwise.

95 This is borne out by Simmons (1931) 23 Cr App R 25, in which the accused was tried on three counts of sexual offences, one being carnal knowledge of a girl under 16. Although it is not detailed in the report, it seems that three witnesses, apart from the accused, gave evidence of their observations and (possibly) of their belief as to the complainant's age. In directing the jury, the trial judge referred only to the evidence of the complainant and the accused, and did not refer to any of the other witnesses. The Court of Appeal said that there were "five different sources from which it was possible for the jury to infer a reasonable belief that the prosecutrix ... was of or above the age of 16 years ...". Their Lordships noted that apart from the girl herself, there were three other identified witnesses, in addition to the accused. It was noted that in the summing-up, all the first four sources were entirely ignored. "Each might be open to criticism, but this question of belief and reasonable cause to believe was left to the jury solely on the testimony of the appellant himself. This was not satisfactory, ...".

96 Mr Barker referred to a case from the United States of America which has been subsequently applied in that country. This was done not on the basis that it had any value as a precedent, but he adopted the reasoning in the judgment as part of his argument. The case is USA v Yazzie 976 F 2d (9th Cir 1992), a decision of the United States Court of Appeals for the Ninth Circuit. Mr Yazzie, who had had sex with a female who was six months short of her 16th birthday, was charged with, and convicted of, sexual abuse of a minor. At the trial, witnesses were allowed to testify that they saw the girl smoking, drinking and driving a car, but they were not allowed to testify as to whether they personally thought she was at least 16 at the time of the offence. Two persons testified that they had seen the girl drive a car before the incident, two testified that she was wearing makeup at the time, and three testified that as a result of their stated observations, the girl appeared sexually mature. A further witness testified that the girl was drinking beer on the night of the incident.

97 The Court set aside the conviction, saying that the evidence of belief ought to have been allowed in that it helped in the understanding of the descriptive testimony "and in determining a critical fact in issue - whether it was reasonable for Yazzie to believe that the minor was 16 or older" with the testimony also being relevant to the question of Mr Yazzie's credibility. The reasons why the testimony was said to be admissible can be summarised as follows:

•

jurors could not themselves assess how old the minor looked at the time of the incident;

•

it is difficult to put into words why one believes that a person is one age and not the other, as one's reasons for concluding that a person is a particular age are both too complex and too indefinable to set out fully;

•

a witness may not know, let alone be able to report precisely, what fact has induced his or her conclusion, so the fact that the witness reached the conclusion is the important part of the testimony, not the largely undeterminable or inexplicable reasons that prompted the conclusion;

•

age is a matter on which everyone has an opinion, and it is appropriate for a lay witness to express an opinion on the subject;

•

the opinions were especially appropriate in such a prosecution where the defendant asserts a mistake-of-age defence, because it is relevant that others having a similar opportunity to observe the minor formed an opinion as to her age that was similar to the opinion the defendant claimed to have formed.

98 I think that the reasoning process has much to commend it as a matter of principle. Evidence of observations and perceptions, visual, auditory, and even tactile, combined with the formation of a belief as to age, is admissible provided that it is otherwise relevant. That is to say, the point in time and circumstances involved are such to give the evidence relevance to the crimes charged. I should note that s78 of the Act concerning lay opinion has no application because the evidence of belief of age is not adduced to prove the fact.

99 Mr Coates submitted that a factor which told against the admissibility of such evidence as a matter of principle, was that the Crown would then be in a position to call evidence from persons who were able to say that on the basis of their observations, the complainant appeared to be under the age of 17 years. The admissibility of such prosecution evidence was the point in USA v White Calf 634 F 3d (8th Cir 2011) which cited Yazzie with approval. Mr Coates said that in this case such evidence would be available. That may well be the case, although I dare say it would not be from men who had engaged the complainant's services as a prostitute. In any event, the fact that the Crown may be able to call such evidence is of no moment, and it is to be borne in mind that at least in respect of two counts, it is the Crown which bears the onus.

100 It follows from all of this, that subject to issues of relevance as to the evidence of the particular witness, such evidence is in principle admissible, whether called by the Crown or by the accused. I then need to turn to look at the provisions of s194M in the evidence of each witness. Mr Coates agreed that even taking the most stringent approach to s194M, which he urged upon me, there was one witness whose evidence, he would concede, was admissible. That witness was W11.

Is leave required under the Evidence Act, s194M?

101 The first question is whether the evidence of each man is evidence that describes the sexual experience of the complainant "other than sexual experience which forms part of the events or circumstances out of which the charge arises". Mr Coates accepts that whilst the fact of the complainant working as a prostitute forms part of the events or circumstances out of which the charge arises, the actual details of her conduct with other men in that role do not. Mr Barker submits to the contrary.

102 The words should be given their ordinary meaning but I think that conceptually what is intended is something akin to the notion of res gestae, so that the sexual experience must form part of the one "transaction", a familiar term in evidence law. Indeed, the term res gestae is used in similar legislation in Western Australia, although somewhat curiously the full expression is "res gestae of the proceedings": Evidence Act 1906 (WA), s36BC.

103 The starting point is to establish what are the facts and circumstances out of which the charge arises, and decide whether the sexual experience disclosed or implied by the evidence forms part of those facts and circumstances. In my view, Mr Coates' submission should be accepted. The accused's involvement with the complainant commenced when he engaged her services as a prostitute. On the first occasion, there was discussion about home visits and he later arranged for that to occur. It is that home visit by the complainant which gives rise to the charge. The advertisement for AB's services, and the fact of her being engaged in prostitution, is relevant to the accused's state of mind. I am unable however to see any logic in the proposition that the complainant's activities with other men forms part of any connected events or circumstances out of which the charges against the accused arise. It follows that the evidence cannot be adduced or elicited without leave under s194M(2).

104 There are two limbs of that subsection. The first is that the evidence must have "direct and substantial relevance to a fact or matter in issue". The second is that the probative value of the evidence must outweigh any distress, humiliation or embarrassment which the victim of the crime might suffer as a result of the admission of the evidence.

105 What does "direct and substantial relevance" mean? The use of the word "directly" in qualifying the relevance of the evidence, would seem to be an allusion to s55 of the Act which, of course, makes evidence relevant where, if it were accepted, it "could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue ...". I think it can be assumed that the contradistinction between "directly" and "indirectly" in s194M(2)(a) is intended to reflect s55. The difference between direct and indirect relevance is one of degree. In South Australia, in civil litigation, discovery of documents is compelled where those documents are "directly relevant to any issue raised in the pleadings". This requirement has been the subject of judicial consideration on more than one occasion.

106 In Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd [2002] SASC 374, Doyle CJ said:

"[11] It is not wise to attempt to state in comprehensive terms the effect of the requirement that the document be 'directly relevant'. The adverb 'directly' is probably intended to emphasise the requirement of relevance, and to be used in the sense of requiring that the document be directly in point, excluding as sufficient indirect relevance which might be established through another linking circumstance. That is not to say, as I have already said, that a document is not directly relevant if it is merely a piece of circumstantial evidence. The point is that a document will not be directly relevant if, rather than tending to prove an issue on the pleadings, it merely tends to prove something that may be relevant to an issue. ...".

107 With the necessary contextual changes, I think those words can be properly applied to s194M(2)(a). As his Honour said in the later case of Rehn v Australian Football League [2003] SASC 159 at [24], distinguishing between direct and indirect relevance is not easy, but as a matter of principle and adopting what his Honour said in the Quenchy Crusta Sales case, it seems to me that the qualification of relevance by the use of the word "directly" means that the evidence of sexual experience must tend to prove or disprove a fact or matter in issue, rather than tending to prove or disprove something that may be relevant to a fact or matter in issue.

108 Turning to "substantial" relevance, it is curious that Parliament did not use the concept of probative value which is defined and is used in not dissimilar situations elsewhere in the Act; for example, "significant probative value" in ss97 and 98. It is, of course, used in s194M(2)(b) which requires an examination of the probative value of "that evidence", being that which has direct and substantial relevance. As defined, probative value is the "extent" of relevance; in effect the degree of relevance. Whether it is intended that "substantial relevance" convey something different, is hard to tell.

109 The expression "substantial relevance" is used in s36BC of the Evidence Act (WA) to which I have earlier referred. In VOT v Western Australia [2008] WASCA 102; (2008) 184 A Crim R 284 at 288 [16], Steytler P said that while it was difficult and not particularly helpful to give any precise meaning to the words, to satisfy the provision the evidence "must be evidence that carries substantial weight in tending to prove or disprove facts in issue". The word "substantial" appears in its adverbial form in s101(2) of the Act. In R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 at [119] Rothman J said, after referring to the well-known statement of Deane J in Tillmanns Butchery Pty Ltd v AMIEU [1979] FCA 85; (1979) 42 FLR 331 at 342, that "substantial" in that context, "is used to mean 'large, weighty or big' and indicates an absolute significance".[4]

110 In my view a combination of all of those statements conveys the meaning of "substantial relevance" in s194M(2)(a).

111 Subsection (2)(b) requires a balancing exercise between the probative value of the evidence and the distress, humiliation or embarrassment a complainant might suffer as a result of its admission. That exercise would only arise if the evidence has the characteristics required by subs(2)(a), and accordingly at this point the evidence has been characterised as directly and substantially relevant. The cause for examining the reliability of the evidence of the men has not arisen in this case, and so the issue of the correct approach to a balancing exercise involving the weighing of probative value does not arise.[5]

The application of s194M(2)

112 I think that it is important to note at this point, that, as stated by Mr Coates, the Crown case is that either at the unit in Glenorchy when he first met the complainant, or at a later point in time but before, even immediately before, the crimes are said to have been committed, the accused did not believe that she was 18 years old.

113 Dealing firstly with the requirement for "direct" relevance, I hold that whatever view may be taken of substantiality or otherwise, the evidence of each man is directly relevant. Evidence of the observations and impressions, and the resulting formation or confirmation of a belief, bears on the accused's state of mind in the following way. His state of mind about the complainant's age is said to have arisen from, or had its foundation in the same basic set of facts and circumstances as those described by the men. In that sense the connection between their evidence and the accused's state of mind as a fact in issue, is a direct one.

114 The dividing point between those men whose evidence might be substantial, and those whose evidence falls short of that mark, is a difficult one to discern. The guiding factor is the presence of a similar opportunity to make the same observations and form impressions, and to have had the same experiences as the accused. Of necessity, the exercise is one of broad judgment; there is no precise science involved.

115 On that basis, it seems to me that the evidence of W3, W5, and W8 is admissible, in addition of course to W11. Those at the other end of the scale are W6, W7, and W9 who did not engage in any sexual activity with the complainant. Two had back massages whilst laying face down; the other said that the complainant began to massage him whilst he was on the bed, but he decided that he did not want to "go through with having sex with her", so he left. Although each had an opportunity to quickly observe AB as she let them into the unit, none had a similar opportunity in nature and extent to that of the accused. I would also exclude W1 and W2 because of the need for substantial relevance. Both seem to have made perfunctory observations and their estimates of age are more based on what they had read or were told, than by a result of any independent process. The situation is less well defined in the cases of W4 and W10, but I think that they should be included in the group whose evidence can be adduced or elicited.

116 Counsel were agreed that if I held that the evidence of the men was admissible as a matter of principle, individual assessments needed to be made. However, no detailed submissions were made as to conceptual or factual differentiation between the men, other than in relation to W11 compared with the others. In those circumstances it seems to me that I should give leave to make further submissions as to those men whose evidence I have said should not be included, because of the need for substantial relevance.

117 As to the exercise under subs(2)(b), the fact of the matter is that the complainant will be giving evidence of her involvement with the accused. That raises the issue of her prostitution. Of itself that will be an obvious fact in the trial. The evidence of some of the details of that activity, in addition to that involving the accused, would no doubt cause one or more of the emotions referred to in subs(2)(b). I cannot of course rule out the possibility that there may be some need to cross-examine the complainant about her activities with the other men, but it is highly unlikely and would be minimal in any event. I think this is a relevant consideration. All in all, I am satisfied that after carrying out the required weighing exercise, leave should be granted.

118 For the reasons which I have given, the orders and rulings are as follows:

(a) I order that count 4 be severed from the indictment.

(b) I rule that the evidence referred to as "tendency evidence" in the tendency notice dated 3 February 2011 is admissible in a descriptive form, but its use is conditional upon evidence of its context, and is restricted to the rebuttal of statements made by the accused in his police interview as identified in these reasons. (As I have noted in the body of the reasons, the issues of description and context may have to be dealt with further by the trial judge).

(c) I rule, subject to (d) below, that the evidence of W3, W4, W5, W8, W10 and W11 concerning their observations and experiences with the complainant and their estimates of her age, is admissible, and leave is granted under s194M(2) of the Evidence Act to adduce or elicit that evidence.

(d) I grant leave to make further submissions as to the identity of the men whose evidence can be adduced or elicited, other than W11.

[1] Two further cases of some relevance were discussed in Lewis. The first is Cole (1941) 28 Cr App R 43, in which it was held that indecent letters found in the possession of the accused which were indicative of homosexual tendencies, were inadmissible on charges of indecent assault and gross indecency, where the defence was not one of mistake in the sense of accident or of identity. There is however, a suggestion that if the defence had been one of innocent motive, the evidence could be admissible. The next is Horwood [1970] 1 QB 133, in which it was held that evidence of propensity to commit offences of a particular kind should not be admitted unless it was relevant to an issue, such as innocent association. It was held that evidence of the accused's admission of homosexual tendencies should have been excluded on the grounds that it had little or no probative value and was highly prejudicial.

[2] I do not suggest that this list of cases is an exhaustive one.

[3] "371 Speeches by counsel and summing up

The following rules shall apply to the proceedings upon the trial of an indictment:

(c) if the accused person has no witnesses to call he may himself give evidence on oath (but by so doing shall not be deemed to adduce evidence), and thereupon, or if he does not give evidence -

[4] Rothman J was in dissent as to the outcome of the case, but the other members of the court did not address this issue.

[5] Odgers, (Uniform Evidence Law), 9th ed (2010) at par1.3.14760.